This Update contains brief details of recent Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in municipal waste management, which have been published in the past month.
Items are set out by subject, with a link to where the full document can be found on the internet. All links are correct at the date of publication.
If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.
The following topics are covered in this update:
|Biodegradable Waste||Pollution Prevention & Control|
Biodegradable WasteWRAP: £500,000 fund to support business food waste collections in England: announces the launch of a new fund to support demonstration projects which encourage the collection of food waste from businesses and public sector buildings. The fund, which is managed by WRAP on behalf of the DEFRA, will give the private sector, local authorities and social enterprises support for developing demonstration projects to show good practice and encourage the further development of food waste collection services from businesses in England. Eligible collection schemes are those servicing commercial businesses such as restaurants, hotels and catering firms, and public sector organisations including council offices and other public sector buildings. Each successful applicant will have an agreed collection tonnage target over a two-year period and WRAP will advise successful recipients on service development and implementation. All collected food waste must be recycled through an anaerobic digestion or In vessel composting process in England. (19 December 2011) Birkett v Department for the Environment, Food & Rural Affairs  EWCA Civ 1606 (CA): the issue in this case was whether a public authority that had initially relied upon a particular exception when refusing to release environmental information under the Environmental Information Regulations 2004 (EIR) could rely on a different exception or exceptions in subsequent proceedings before the Information Commissioner and/or the First-Tier Tribunal.
B, the founder of the Campaign for Clean Air in London, had made a request to DEFRA under the EIR for information relating to discussions between the previous Government and the Mayor of London on matters of air pollution and the UK's compliance with EU air quality laws. DEFRA refused, relying on the “disclosure of internal communications” exception in reg.12(4)(e). The Information Commissioner ordered DEFRA to disclose the information and DEFRA appealed to the Tribunal. It continued to rely upon the reg.12(4)(e) exception but also sought to rely on two further exceptions: legal advice privilege under reg.12(5)(b) and confidentiality under reg.12(5)(d). The First Tier Tribunal decided that DEFRA could not rely on the new exceptions without the permission of the Tribunal, which it withheld. On appeal, the Upper Tribunal decided that DEFRA was entitled as of right to rely on the two new exceptions. B appealed, submitting that a public authority could not rely on a new exception or exceptions in proceedings before the Commissioner and the Tribunal but could rely only upon the exception or exceptions which were specified in its reasons for refusing the request.
The court held, dismissing B’s appeal, that DEFRA was entitled to rely as of right on the exceptions referred to in its Notice of Appeal to the Tribunal. Art.6 of the Environmental Information Directive 2003/4 provided for a thorough review process in which the merits of a decision to refuse to release environmental information would be reconsidered afresh by an independent and impartial body. Such a process was bound to discover errors and omissions in the exceptions relied upon in initial decisions, and it would be surprising, given the balancing exercise required by the Directive, if those errors were incapable of subsequent correction. An appeal to the Tribunal was governed by the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 that set out a statutory scheme which required the public authority to set out its grounds of appeal, or grounds of opposition to an appeal, within a particular timescale, and which expressly envisaged in the latter case of the latter that those grounds may contain new reasoning. (21 December 2011)
HC Environment, Food & Rural Affairs Committee: The draft National Policy Statement for Hazardous Waste: this report critically examines the draft National Policy Statement (NPS) that will guide decision-making on applications for large scale hazardous waste infrastructure. The Committee concludes that the NPS must be amended to keep costs to a minimum and reduce the risk of flooding. It found that the NPS contains ambiguities which could lead to lengthy and expensive legal argument, and that there is a real risk that if it is not amended it will actually discourage developers from investing in needed infrastructure. As well as providing greater clarity in the policy statement itself, the Committee calls on DEFRA to look for opportunities to reduce bureaucracy and duplication in the planning process. It is also concerned that the NPS does not set out a sufficiently robust approach to the issue of flooding and it recommends that the Environment Agency be given the power to veto applications on ground of flood risk. (14 December 2011)
DBIS: Green Investment Bank moves a step closer: the Business Secretary has given details of the rollout of the Green Investment Bank (GIB). Its first priorities for investment will be offshore wind power generation, commercial and industrial waste processing and recycling, energy from waste generation, non-domestic energy efficiency and support for the Green Deal. To accelerate private sector investment in the green economy, a new team, UK Green Investment (UKGI) will be set up within DBIS to drive investment in the UK’s green infrastructure until the GIB is formally established. He also announced the GIB’s delivery schedule - the project will evolve over three phases:
- UKGI: from 2012 until state aid approval for GIB is granted, DBIS’s UKGI project will make direct investments in green infrastructure projects. UKGI will be able make investments under s.8 of the Industrial Development Act 1982 prior to state aid clearance being given.
- Establishment: GIB will be established as a as a stand-alone institution following state-aid approval. It is expected that state aid approval will be granted in Spring 2013.
- Full borrowing GIB: from April 2015, the GIB will be given full powers to borrow, subject to public sector net debt falling as a percentage of GDP and further state aid approval being granted.
The formal recruitment process for appointments to the Green Investment Bank board and senior management team will begin in January 2012, with the appointment of the Chair being made in Spring 2012. (12 December 2011)
DBIS: Location of the Green Investment Bank - Self assessment process: this document sets out the criteria that will be taken into account in reaching a decision on the GIB’s location. The key underlying consideration in determining this will be the operational effectiveness of the GIB, ensuring it is capable of delivering its primary objective of increasing the speed and scale of commercial investment in the UK’s green infrastructure. Anyone wishing to provide information about the merits of a location should submit self assessments by 30 January 2012. (12 December 2011)
DBIS: Managed account/s for investments in waste infrastructure in the UK - Call for expressions of interest from fund managers: UK Green Investments (UKGI) is seeking expressions of interest from experienced fund managers to run Government managed accounts of up to £100m to be invested in waste infrastructure projects. The fund will invest in small waste infrastructure projects, waste recycling and waste treatment ahead of the establishment of the Green Investment Bank (GIB). Potential fund managers should target the waste infrastructure sector, and projects with a technical focus on value adding: re-use, recycling, or waste reprocessing facilities; waste-to-energy facilities; waste facilities displacing fossil fuels; and rollout of proven waste technologies across the UK. They should also show how they intend to raise the private sector investment to invest alongside UKGI. The deadline for submission is 4 January 2012. (12 December 2011)
DEFRA: Recovery and recycling targets for packaging waste for 2013-2017: seeks views on proposed new recovery and recycling targets for 2013-17 in the Producer Responsibility Obligations (Packaging Waste) Regulations 2007:
- steel recycling target increased by 1% pa, from 71% in 2012 to 76% by 2017;
- aluminium recycling target increased by 3% pa, from 40% in 2012 to 55% in 2017;
- plastics recycling target increased by 5% pa, from 32% to 57% by 2017; and
- overall packaging recovery rate increased by 1% pa, from 74% in
2012 to 79% in 2017.
The consultation closes on 10 February 2012. (16 December 2011)
Environment Agency: Consultation on our guidance Pollution Prevention Pays: seeks views on updating the good practice booklet currently known as ‘Pollution Prevention Pays: Getting your site right’ which helps small to medium sized businesses, as well as larger businesses, reduce their risk of causing environmental pollution. The guidance covers background information, action points to follow to improve environmental performance and sources of further help. It has advice on site drainage, deliveries and handling, waste management, trade effluent, groundwater and training and emergencies. The revised guidance has updated legal requirements and good practice action points for business across England and Wales. The consultation closes on 23 March 2012. (19 December 2011)
European Commission: New EU procurement thresholds: announces the new thresholds that apply from 1 January 201. For local authorities, these are:
- Works: £4,348,350 (€5,000,000)
- Services or Supplies: £173,934 (€200,000).
See also the Cabinet Office’s Procurement Policy Note
10/11: New Threshold Levels for 2012 and changes in the use of
the Accelerated Restricted Procedure.
The formal notice of the amendments is set out in Commission Regulation 1251/2011. (2 December 2011)
European Commission: Proposal for a Directive of
the European Parliament and of the Council on public procurement
(COM (2011) 896): this draft Directive is intended to replace
the Consolidated Procurement Directive 2004/18. It follows on from
the January 2011 Green Paper that sought views on options for
legislative changes to make the award of contracts easier and more
flexible and enable public contracts to be put to better use in
support of other policies, including the need for simpler and more
flexible procedures, strategic use of public procurement to promote
other policy objectives, improving access of SMEs to public
contracts and combating favouritism, corruption and conflicts of
There is an equivalent draft Utilities Procurement Directive (COM (2011) 895) that will replace Directive 2004/17.
Further details of both draft Directives are set out in Memo/11/931 – FAQs on Commission proposals to modernise the European public procurement market. (20 December 2011)
European Commission: Proposal for a Directive of
the European Parliament and of the Council on the award of
concession contracts (COM (2011) 897): this draft Directive
aims to complete the European public procurement regime by
including service concessions. The proposed rules establish a clear
legal framework to ensure the necessary legal certainty for public
authorities when performing their duties, guaranteeing effective
access to the concessions market for all European businesses,
including SMEs, so as to stimulate the development of
public-private partnerships. The Commission proposes the obligatory
publication of concessions in the OJEU, and also proposes
specifying the obligations of the contracting authorities as
regards the choice of selection and award criteria, imposing
certain basic guarantees which should be respected during the award
procedure and extending the benefits of the Remedies Directive
regarding public procurement to any person interested in obtaining
a concession, as well as adopting certain clarifications on, for
example, the concession amendments currently under way. The
provisions will apply only to large concessions in cases with an
evident cross-border interest.
Further details are set out in Memo/11/932 – FAQs on the draft Concessions Contracts Directive. (20 December 2011)